Was there a Congressional Declaration of War on the Barbary Pirates? ( Maybe not!)

One of the more frustrating debates about this “war on terrorism” being discussed on the forum has been the legitimacy of Bush’s recent actions in light of the fact that Congress has not formally issued a “Declaration of War”. It is argued by a large contingent of libertarians and paleo-conservatives that all military actions and presidential powers exercised as the Commander in Chief in war time require this formal declaration by Congress to meet Constitutional muster. The other side, the “Bushies” for lack of a better term, argue that this is a different circumstance from any we have ever faced and that we are at “war” with a virtually faceless enemy and we have no idea from one day to the next where and in what country he will rear his ugly head and in which country we will be forced to assert military power in order to stop future terrorist activity.

The pro-formal DOW side and many media reports point to the “War on the Barbary Pirates” as the precedent we should be using. That has become the conventional wisdom and has been used to point out the model that Bush and Congress should be using. It does appear to be a very strong and compelling case and has had many of us, even some of us “Bushies” scratching our heads and wondering. It started me wondering about how the wording of the formal “declaration of war” on the Barbary Pirates read and so I started doing a search. The results were that the conventional wisdom appears incorrect.

From my research I have found that indeed war was declared on the Barbary Pirates, it was declared by President Jefferson, just as President Bush has declared war on terrorism. However; the Congress never formally declared war on the BP, in fact no lesser person than Alexander Hamilton stated outright that a formal declaration of war was NOT required when the nation was attacked by a foreign enemy and it was that interpretation that Congress embraced at the time. The Congress passed a joint resolution authorizing Jefferson to act much in the same way as the Terrorism Joint Resolution authorized President Bush to assume war footing as Commander In Chief.

I am attaching several references to this research. I think honest debate requires accuracy in the references we use to make our cases. I also know that this could be wrong on my part and if there is information to the contrary I am sure that many on the forum will correct the error. I hope this helps to do that.

In the early draft of the Constitution presented to the Convention by its Committee of Detail, Congress was empowered ''to make war.''1412 Although there were solitary suggestions that the power should better be vested in the President alone,1413 in the Senate alone,1414 or in the President and the Senate,1415 the sentiment of the Convention, as best we can determine from the limited notes of the proceedings, was that the potentially momentous consequences of initiating armed hostilities should be called up only by the concurrence of the President and both Houses of Congress.1416 In contrast to the English system, the Framers did not want the wealth and blood of the Nation committed by the decision of a single individual;1417 in contrast to the Articles of Confederation, they did not wish to forego entirely the advantages of executive efficiency nor to entrust the matter solely to a branch so close to popular passions.1418

The result of these conflicting considerations was that the Convention amended the clause so as to give Congress the power to ''declare war.''1419 Although this change could be read to give Congress the mere formal function of recognizing a state of hostilities, in the context of the Convention proceedings it appears more likely the change was intended to insure that the President was empowered to repel sudden attacks1420 without awaiting congressional action and to make clear that the conduct of war was vested exclusively in the President.1421

An early controversy revolved about the issue of the President's powers and the necessity of congressional action when hostilities are initiated against us rather than the Nation instituting armed conflict. The Bey of Tripoli, in the course of attempting to extort payment for not molesting United States shipping, declared war upon the United States, and a debate began whether Congress had to enact a formal declaration of war to create a legal status of war. President Jefferson sent a squadron of frigates to the Mediterranean to protect our ships but limited its mission to defense in the narrowest sense of the term. Attacked by a Tripolitan cruiser, one of the frigates subdued it, disarmed it, and, pursuant to instructions, released it. Jefferson in a message to Congress announced his actions as in compliance with constitutional limitations on his authority in the absence of a declaration of war.1422 Hamilton espoused a different interpretation, contending that the Constitution vested in Congress the power to initiate war but that when another nation made war upon the United States we were already in a state of war and no declaration by Congress was needed.1423 Congress thereafter enacted a statute authorizing the President to instruct the commanders of armed vessels of the United States to seize all vessels and goods of the Bey of Tripoli ''and also to cause to be done all such other acts of precaution or hostility as the state of war will justify . . .''1424 But no formal declaration of war was passed, Congress apparently accepting Hamilton's view.1425

You still have not gone back and answered my question yet in another thread in a discussion you started. Now you flag me to another another thread. You prove to me over and over when you dont like my answers and when I refer to the constitution you call it semantics. So why flag me?

From your post: "declared war upon the United States, and a debate began whether Congress had to enact a formal declaration of war to create a legal status of war. President Jefferson sent a squadron of frigates to the Mediterranean to protect our ships but limited its mission to defense in the narrowest sense of the term.

Catch that? "to protect our ships but limited its mission to defense in the narrowest sense of the term." He didnt declare war.

Congress has acted and has decided what it wants to do about Sept. 11, IT resolved to give Bush 60 days to use force and if he wants more he has to ask. They limited his war powers and tied his hands. The Joint Resolution from Congress specifically points to the War Powers Resolution Requirments.

. Here is the snip from the Joint Resolution from Congress authorizing force

"Section 2. Authorization for Use of United States Armed Forces

(a) That the president is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on Sept. 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.

(b) War Powers Resolution Requirements" Here is a snip from the begining of thw War Powers Resolution

"Public Law 93-148 93rd Congress, H. J. Res. 542

November 7, 1973 Joint Resolution Concerning the war powers of Congress and the President.

Resolved by the Senate and the House of Representatives of the United States of America in Congress assembled.

SHORT TITLE SECTION 1. This joint resolution may be cited as the "War Powers Resolution". PURPOSE AND POLICY

SEC. 2. (a) It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicate by the circumstances, and to the continued use of such forces in hostilities or in such situations.

(b) Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof. (c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to

Here are the 3 choices and CONGRES PICKED #2 "specific statutory authorization" ALSO if you notice it says OR before #3

(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."

OK now continuing..... from The Joint Resolution from Congress, it specifically points out Statutory Authorization Here is the snip

"(1) Specific Statutory Authorization — Consistent with section 8(a)(1) of the War Powers Resolution, the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution.

(2) Applicability of Other Requirements — Nothing in this resolution supersedes any requirement of the War Powers Resolution. "

Now Here is section 8 (a) and 5 (b) from the War Powers Resolution

SEC. 8. (a) Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred-- (1) from any provision of law (whether or not in effect before the date of the enactment of this joint resolution), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution; or (2) from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution.

Sec. 5(b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of Untied States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty-day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty-day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces. So since congress did not declare war and the only thing it did declare was "Congress declares that this section is intended to constitute specific statutory authorization within the meaning of section 5(b) of the War Powers Resolution" and I guess you could say Section 8 (a)(1),

A reference was made in another thread Post #128 and Post #139 about the "Declaration of War" during the Civil war.

My reply is pasted below:

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I would agree with this article, if there was a Declaration of War. There isn't, yet. The justification for these tribunals needs to come from history--both Lincoln and FDR had obtained such Declarations prior to their restriction on liberties. What a Declaration tends to do is clearly define the belligerents

Actually, Abraham Lincoln did not obtain a Declaration of War against the Confederate States of America. Try finding the text of such a declaration of war. You will never find it.

The United States of America never declared war during the Civil War. This was in keeping with its position that the rebel states did not form a new nation, rather they were states in which a rebellion was taking place. Abraham Lincoln issued a Proclamation that an insurrection existed in the states of SC, GA, FL, AL, MS, LA, and TX on 15 Apr 1861 (Messages & Papers of the Presidents, vol. V, p3214). He also proclaimed a blockade of Southern harbors on 19 Apr 1861, and the date of this proclamation was taken by the Supreme Court in several cases to be the official beginning of the insurrection.

In the war against terrorism, a declaration of war is not appropriate when you are fighting what legally amount to saboteurs, filibusters, pirates and terrorists. Wars are declared against sovereign states. These individuals represent no sovereign state.

Congress has passed an authorization to use force against all the organizations linked to the 11 September attack. That is the Constitutional equivalent of a declaration of war when a sovereign nation is not the enemy.

Legally, anyone who attacks the U.S. automatically becomes a belligerant the instant that the attack starts. The U.S. Navy was shooting back at the Japanese on 7 December 1941 although Congress had not yet declared war. Japan clearly defined itself as a belligerent by it's own action. Any foreign group, either known or previously unknown, who attacks or facilitates an attack on the U.S. is likewise an automatic and defined belligerent by it's own action.

In regards to terrorists living within the U.S., Abraham Lincoln has set the historical precedent that the President can declare a certain group of people to be in a state of insurrection against the U.S.

139 posted on 11/19/01 7:48 AM Pacific by Polybius

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